Electronic Monitoring Mistakes: Playing Tag with People’s Liberty?

In 1989 England and Wales became the first European jurisdiction to start using Electronic Monitoring equipment and its use has expanded significantly in three decades since. By way of illustration, the number of adults subject to EM as part of either bail conditions, a community sentence or early-release Home Detention Curfew, as at 31 March 2021 was 13,963.

Since 2019, two types of electronic ankle tags have been in use in England and Wales-

  • Curfew tags
  • Location tags

The former are commonly deployed for Home Detention Curfews (e.g ensuring the compliance of early release prisoners with what are generally 12 hour overnight curfews). A fixed monitoring unit in the home will send an alert if the tagged person is not present in that location during their hours of curfew.

Location tags are more sophisticated devices which allow GPS tracking, and can therefore be used to monitor not just whether a person is keeping to their own home during specified hours, but also to track where exactly they go outside the home, allowing – for example – an exclusion zone to be set up around a particular locality, such as the victim – or alleged victim’s – home address. Should the person wearing the tag come within a specified distance of the victim’s home, then the Electronic Monitoring Service (EMS) would be alerted and could call the Police to intervene.

Day to day monitoring of electronic tags (EMS)  is something which has been out-sourced to the private company Capita, who were reported in a 2016 review by the University of Leeds, to be working on a ‘call centre model’ with staff who are generally lacking in probation, social work or other criminal justice sector training or experience.

This is a point of obvious concern to me, and one which I have reflected on before when considering the debacle of the previous part- privatisation of Probation services in this country.

No matter how sophisticated the technology, electronic monitoring is only as good as the people who are interpreting and acting upon the data. People’s liberty can be put at risk by human error and carelessness, and that is sadly what befell my client, Noel Brown.

Noel was arrested for allegedly assaulting his wife on 7 February 2020. Whilst awaiting trial he was bailed by Nottinghamshire Magistrates Court to his daughter’ s address, 15 Elstree Road with an electronically tagged bail condition not to attend the marital home, 3 Highfield Avenue, or contact his wife.

At approximately 06:00 on 13 February 2020, officers of Nottinghamshire Police attended 15 Elstree Road and arrested Noel in the presence of his daughter for “breach of bail conditions”. It was alleged that Noel had breached his conditions on 11 February by being out of his bail address between 20.54 – 20.58 and then 23.02 – 23.43. Noel was conveyed to Mansfield Custody Suite and placed into a cell.

At approximately 08:30 Noel was taken to Nottingham Magistrates Court. After waiting in the cells for several hours, he was brought before the Court at approximately 15:00. There it was determined that there had not, in fact, been a breach of any bail condition and Noel was immediately released.

It appears that EMS (Capita) staff had misinterpreted Noel’s bail condition not to attend the marital home as a bail condition to remain within the confines of his daughter’s home, which is not at all the same thing. He was in fact free to come and go as he pleased, provided he did not change his residential address from 15 Elstree Road and he did not approach 3 Highfield Avenue. The monitoring staff had ‘breached’ Noel, and caused the Police to arrest him, simply because he had left 15 Elstree at night, despite this not being a violation of his bail. As a result, Police and Court service time and resources were wasted and Noel underwent a very unpleasant experience, being wrongly deprived of his liberty for over 9 hours.

As a common condition of electronically monitored community sentences or early release from prison is that the ‘tagged’ individual has to observe a night time curfew, it is likely that the EMS staff were wrongly assuming Noel was under such a restriction: but he was not, as a simple check of the Bail Notice issued by the Court would have confirmed – sadly this was not properly undertaken/ understood until Noel himself was at Court.

Capita have now settled Noel’s claim for compensation and have agreed to pay his legal fees. I note that their current contract with the Ministry of Justice is worth £114 million over 3 years, and I would humbly suggest that they invest a more significant proportion of their profits in properly training their staff so that easily avoidable errors such as this do not incur in the future, causing unnecessary heartache and expense for all concerned; otherwise they are ‘playing tag’ with people’s liberty and risk bringing the Electronic Monitoring Service into the same disrepute as the recently abolished private probation companies did with that service.

Names & addresses have been changed.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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